The Court’s case law on the applicability of the prohibition of discrimination of Article 14 of the European Convention on Human Rights has always been ambivalent. From the 1970s onwards, there are two parallel lines of case law, one allowing complaints about almost all differences in treatment, regardless of their grounds, and another allowing only complaints about discrimination based on personal status or personal characteristics. Although the Court tried to bring its case law together in the cases of Carson and Clift, an analysis of subsequent cases makes clear that its approach is still confused. It is argued here that the inconsistencies in the definition of grounds of discrimination reflect a fundamental ambivalence as to the theoretical principles underlying Article 14. The article sets out two different rationales for non-discrimination law that may provide a sound basis for a certain approach towards the definition of grounds of discrimination. Both rationales have important but radically opposed consequences for the way Article 14 is applied as well as for the position of the Court. Although the Court may not want to do so, and although both conceptions are defensible, it will need to make a choice in order to guarantee a transparent and predictable non-discrimination case law.

This article argues that the fate of veil bans under European law is uncertain. It shows that European commitments to free speech and freedom of religion cannot accommodate an absolute ban justified solely on grounds of the offensiveness of the veil. However, a ban that applies to public face-covering in general (rather than a ban that only targets the veil), that relates to the specific (though admittedly broad) context of social life and that provides some exceptions allowing the veil to be worn in specific religious or expressive contexts, has a reasonable chance of being upheld by European courts despite the significant infringement of personal autonomy it would involve.

Friday, 22 February 2013

Recently, the European Court issued another judgment on education for Roma: Horváth and Kiss v. Hungary. The judgment, amongst others, established that states need to address structural disadvantages caused by past discrimination through positive measures. It is my great pleasure to introduce a guest post by professor Renáta Uitz, professor of comparative constitutional law at Central European University in Budapest, with comments on this judgment:

Misdiagnosis of Roma children in
Hungarian public education is found to amount to discrimination

by Renáta Uitz

The
segregation of Roma children in public education continues to be a major
failure of the European human rights regime. In 2007 in D.H. v. the Czech Republic(also known as the Ostrava case) the
ECtHR established the basic premises of challenging segregation of Roma
children in public education. Importantly, the ECtHR agreed to accept
statistical evidence to ascertain a violation, to reverse the burden of proof
and also insisted on the burden of justification being as strict as possible
for discrimination based on nationality or ethnicity. Despite being a seminal
decision, however, D.H. v the Czech
Republic is still awaiting its enforcement.

The
Chamber judgment in Horváth and Kiss v
Hungary reinforces the line of jurisprudence marked by D.H. and subsequent
decisions.It confirms the admissibility
of statistical evidence for establishing prima
facie discrimination based on ethnicity (para 107) and the reversal of the burden
of proof (para 108). It also reaffirms that in a public education setting
it is not necessary to prove discriminatory intent for indirect discrimination
(para 106). Importantly, the Court established that in the context of public
education, in a case where a group of pupils has suffered past discrimination
with continuing effects, structural disadvantage needs to be addressed by
positive measures. The Court insisted on “particularly stringent” positive
obligations due to the actual history of discrimination in the case (para 104).
It is in this latter respect that the new Hungarian cases added significant
insight to the existing jurisprudence.

Applicants
in the Hungarian case challenged the misdiagnosis of Roma children as mentally
disabled, and their subsequent placement in segregated special schools. The
curriculum in these special schools is more rudimentary than in ordinary public
schools and educational opportunities for graduates of special schools are limited.
Although placement to special schools is based on complex testing, the overall
pattern still was that Roma children have been considerably overrepresented in
special schools, compared to the proportion of Roma in the general population.
The special school in the applicants’ town had been 40-50 per cent Roma, while
Roma children amounted to 8.7 per cent of the student body in the same town
(see para 4).

The
case before the ECtHR arose from a strategic litigation effort by Roma rights
NGOs, the Chance for Children Foundation (CFCF) and the European Roma Rights
Center. In order to litigate the underlying claims across the Hungarian
judicial system, CFCF first of all had to establish the misdiagnosis of the
applicants as students with mental disabilities. To this effect counsel for the
applicants did not only furnish evidence on the racial bias implicit in the
various tests used for placement in special schools, they also presented the
results of the alternative testing of the applicants at a summer camp which
yielded significantly higher test scores than those on the same tests which were conducted
by government experts before (paras 31-34). The summer camp was funded by the
Roma Education Fund, which later also submitted an amicus curiae brief in the domestic proceedings.

These
findings did not come as a surprise. The misdiagnosis of Roma children, who
were placed the special schools for children with learning difficulties as a
result of ethnic bias in the testing is a systemic and lasting problem in
Hungary, as has been clearly exposed on the European level before. Unlike in
many other countries in the region, in Hungary reliable data on the
misdiagnosis of Roma children were available since the 1970’s. CFCF heavily
relied on these data during the entire procedure. The findings of extensive
European monitoring in several reports and recommendations on Hungary, as
identified by the Advisory Committee on the Framework Convention for the
Protection of National Minorities, the CoE Commissioner for Human Rights and
ECRI’s regular monitoring, were consulted by the ECtHR in the case.

The
domestic procedure was complicated by numerous changes in the legal regulation
of public education and also in the testing regiment itself. These changes were
triggered in parts by the government’s alleged own efforts to improve testing.
Also, the applicable Hungarian legal regulation was amended with the
transposition of EU equal treatment rules alongside the introduction of a
comprehensive equal treatment act and the establishment of a national equal
treatment authority. The resulting procedure was rather complex with three
respondents (the panel of experts misdiagnosing the applicants, the special
school which the applicants attended and the county council which was
responsible under the law for the operation of the panel of experts and the
specials school) being brought to court, on appeal and also on judicial review
in a discrimination suit with claims for damages.

The
applicants were not completely unsuccessful with their claims before domestic
court, a factor which prompted a very close inquiry into the exact scope of
their claim before the ECtHR during the preliminary analysis. After all, the
panel of experts was found to act in a discriminatory fashion already by the
first instance court for failing to assess the applicants in an individualized
manner, and in the review proceedings the Supreme Court found that the county
council had to pay damages for its failure to supervise the legality of the
operation of the panel of experts. At the same time, the Supreme Court found no
equal treatment violation by the special school and the county council, noting,
that the failure of the state to remedy a systemic violation of human rights
which resulted from the absence of a professional protocol for testing was a
problem to be remedied by the ECtHR or by the Hungarian Supreme Court. It was
in respect to this discrimination challenge contesting a systemic violation
that the ECtHR found the case admissible (para 86). The ECtHR, however, refused
to address the part of the petition which challenged the unsuitability of the
tests used, as it did not find domestic remedies exhausted in this respect
(para 87). As a result the ECtHR examined whether committing the applicants to
otherwise segregated special schools for students with mental disability due to
their Roma origin amounted to indirect discrimination with regard to the
applicants’ right to education (Article 2 of Protocol no. 1 in conjunctions
with Article 14).

Indeed, the most
significant novelty the Horváth and Kiss judgment
brings is the Court’s analysis on the nature and extent of the state’s positive
obligation to prevent a well-established, lasting and systemic violation of
human rights in the context of education. The Court said explicitly that “the
State has specific positive obligations to avoid the perpetuation of past
discrimination or discriminative practices disguised in allegedly neutral
tests” (para 116). It is for the state to demonstrate that the tests used as
well as their application in practice is capable of “fairly and objectively”
determining the learning abilities of the applicants (para 117). In the
application of this standard, it turned out to be rather demanding.

Importantly,
before the ECtHR the government did not dispute the racial bias in at least
some of the tests used, instead, it argued that “cultural bias could be
compensated” by alternative examination (paras 95 and 120). The government,
nonetheless, insisted that the over-representation of Roma children in the
special schools results from social deprivation, a factor which is outside the
scope of the right to education (para 96). Responding to the government’s
points, the ECtHR found that exactly for these reasons there was at least a
“danger” that the tests were culturally biased, therefore, the Court was
looking for “special safeguards” to prevent misdiagnosis (para 121), which it
did not find. The lack of safeguards was established with the ECtHR relying on
the facts as established by the domestic courts, taking into account the
rapidly changing legal environment which was also pointed out by the national
courts.

Note
that while the ECtHR adopted the language of the government’s explanation,
classifying racial bias as cultural bias, it did not follow the government all
the way to accepting the social deprivation argument as an explanation for the
disproportionately high number of Roma children in special schools in Hungary.
Indeed, the Court relying also on reports from European monitoring bodies
revisited the impact of the dubious concept of “familiar disability” used to
justify the misdiagnosis of Roma children (para 115). This is a most welcome
development, as the ECtHR appears to be willing to come to an informed assessment
of developments on the ground, taking advantage of a wide range of sources for
its analysis. In addition to the Court’s openness to statistical evidence in order to establish indirect discrimination on the basis
of ethnicity, it is reassuring to see that the Court is open to listen and
learn from the findings of extensive European human rights monitoring and
reporting on questions which are too complex (and costly) for applicants to
explore on their own in individual cases. The openness of the ECtHR to accept a
wider range of evidence, and piece together a truly European account of a
structural and systemic violation is all the more significant, as similar data
on ethnic origin are not available in many other countries of the affected
region.

In
closing, it is worth noting that –as also signaled by the ECtHR– special
schools for mentally disabled and developmentally challenged children present a
human rights problem in themselves. The Hungarian special school regime is
particularly problematic, as it caters to children with mental disabilities,
and also with other learning difficulties. Departing from the WHO value of IQ
70, pupils at IQ 86 or below were placed in these special schools. In this
regime pupils with IQ 70 to 85 were understood to have a borderline intellect,
and as such they were seen to have serious and persistent learning impairments.
While the government requested in 2004 to stop the transfer of children with a
score above IQ 70 to special schools, in 2007 the National Expert and
Rehabilitation Committee still insisted on the borderline qualities of these
children. In addition, as the Court also noted, in 2007/08 only 0.4-0.6 per
cent of children with special needs were integrated in Hungary in secondary
education (para 8), i.e. the overwhelming majority of special schools segregate
their pupils from mainstream public education.

The
ECtHR accepted the government’s position that it maintained special
schools“to find a solution of children
with special education needs” (para 113). At the same time, the Court expressed
serious concerns about the existing regime, echoing the concerns of other
European institutions (para 113).In
light of this background, it is not a surprise that the Court used the closing
paragraphs of the judgment as an opportunity to emphasize (reinforcing its
decisions in Kiss v Hungary) that due
to the special vulnerability of persons with mental disabilities the limitation
of their fundamental rights has to be justified by very weighty reasons, and
has to be subject to strict scrutiny (Kiss,
paras 42 and 44, reaffirmed at Horvath
and Kiss, para 128). This language of clear encouragement from the Court
should be read by disability advocates as a sign that the ECtHR may be ready to
hear from them on the segregation of children with learning difficulties in
several European countries.

Thursday, 21 February 2013

It is my pleasure once again to welcome a guest post by dr Paul Johnson of the University of York. This time he has written a guest post on this week's judgment in X and Others v. Austria, about adoption for same-sex unmarried couples. Let me also take the opportunity to point to his newly started blog entitled the ECHR Sexual Orientation blog. This is his guest post on the judgment:

X.
and Others v Austria

by Paul Johnson

On
19th February 2013, the Grand Chamber of the European Court of Human
Rights issued an important judgment in respect of a complaint
about discrimination on the grounds of sexual orientation in second parent
(step parent) adoption. In X. and Others
v Austria three applicants, a female same-sex couple and the biological
child of one of the partners, complained that their legal exclusion from second
parent adoption constituted discrimination contrary to Articles 8 and 14 of the ECHR.

Second
parent adoption is available to married and unmarried opposite-sex couples in
Austria, but unavailable to same-sex couples because of Article 182(2) of the
Civil Code (which requires second parent adoption to be formed within
opposite-sex couples). The complaint in
X. and Others v Austria is different to the complaints brought in previous
adoption cases concerning sexual orientation heard by the Court which concerned
discrimination in adoption by single individuals (Fretté v France;E.B. v France) and discrimination between
opposite-sex married couples and same-sex couples in civil partnerships (Gas and Dubois v France). In the present
case, the key complaint was that same-sex couples were differentiated from both
unmarried and married opposite-sex couples.

The
background to the complaint was the refusal by the domestic Austrian courts to
allow one of the applicants (the first applicant) to adopt the biological child
(the second applicant)of her partner (the third
applicant). Whilst the proceedings in the domestic courts were lengthy and
encompassed a number of important issues – not least, the refusal of the
child’s biological father to consent to the adoption – the consistent complaint
advanced by the applicants was a principled objection to the existence of
Article 182(2) of the Civil Code. Their complaint to the Court was about the blanket
exclusion of same-sex couples from second parent adoption by Article 182(2)
rather than about any aspect of the merits of their individual adoption
application.

The
Court held by a majority (ten to seven) that there had been a violation of
Article 14 taken in conjunction with Article 8 of the Convention on account of
the difference in treatment of the applicants in comparison with unmarried
opposite-sex couples in which one partner wished to adopt the other partner’s
child; and, unanimously, that there had been no violation of Article 14 taken
in conjunction with Article 8 when the applicants’ situation was compared with
that of a married couple in which one spouse wished to adopt the other spouse’s
child.

There
are a number of interesting facets to the judgment, and I will concentrate only
on three issues here.

The
key reason why the complaint succeeded in the Court was the applicants’
comparison of their family life with that of unmarried opposite-sex couples. In
applying its standard ‘tests’ to determine whether a difference in treatment
amounts to discrimination under Article 14, the Court accepted that the
applicants were in an analogous position with an
unmarried opposite-sex couple, that there was ‘no doubt that the applicable
legislation leads to a distinction between unmarried different-sex and same-sex
couples in respect of second-parent adoption’ (§ 116), and that the ‘difference
was inseparably linked to the fact that the first and third applicants formed a
same-sex couple, and was thus based on their sexual orientation’ (§ 130). The
Court reiterated its now established case law that differences based on sexual
orientation require particularly serious reasons by way of justification, that
where a difference of treatment is based on sexual orientation a State’s margin
of appreciation is narrow, and emphasized (a point which is sometimes
explicitly missing from its judgments) that differences based solely on
considerations of sexual orientation are unacceptable under the Convention.

The
chief focus of the Court’s judgment is on the fact that ‘the applicants were
directly affected by the law complained of’ (§ 126) and the major substance of
its review is directed to the ‘narrowly defined issue of alleged discrimination
between unmarried different-sex couples and same-sex couples in respect of second-parent
adoption’ (§ 134). This approach was criticized by the seven dissenting judges who
argued that the Court’s consideration of the impugned legislation was inappropriately
abstract and failed to pay sufficient attention to the substantive issues
involved in the adoption case at hand (such as the best interests of the child).
Another point of criticism advanced by the dissenters was thatthe
Court had inappropriately employed its ‘living instrument’ doctrine to reach a
judgment that went ‘beyond the usual limits of the evolutive method of
interpretation’. This claim may have been encouraged by the fact that, whilst the
Court stated that it was ‘not called upon to rule on the issue of second-parent
adoption by same-sex couples as such, let alone on the question of adoption by
same-sex couples in general’ (§ 134), it did make a number of striking remarks,
such as ‘the Austrian legislation appears to lack coherence’ (§ 144), which
implicitly urge wide reform. Yet, in respect of the
issue concerned – the existence of legislation that differentiates between
unmarried same-sex and opposite-sex couples – the Court’s approach to its
review and the judgment it reached are consistent with its established case law
on discrimination on the grounds of sexual orientation.

Reassertion of a
heteronormative view of marriage

Aside
from the view expressed by Judge Spielmann in his concurring opinion – in which
he re-stated his argument first expressed in Gas and Dubois v France that unmarried same-sex couples are in a comparable position to
opposite-sex married couples but, lamentably, went on to conclude that he did
not feel it necessary to examine the issue – the Court unanimously determined
that unmarried same-sex couples are not in a comparable position to married opposite-sex
couples and, therefore, are not discriminated against when they are denied legal
rights reserved for married couples. The Court stated that it found it ‘appropriate
to repeat and confirm’ its view that ‘Article 12 of the Convention does not
impose an obligation on the Contracting States to grant same-sex couples access
to marriage’, ‘[n]or can a right to same-sex marriage be derived from
Article 14 taken in conjunction with Article 8’, that ‘[w]here a State
chooses to provide same-sex couples with an alternative means of legal
recognition, it enjoys a certain margin of appreciation as regards the exact
status conferred’, and that ‘marriage confers a special status on those who
enter into it’ (§ 106). The significant emphasis on this interpretation of
Article 12 in the judgment, and the unanimous agreement on this line of
reasoning, is a clear sign that the Court intends no evolution in its case law
on same-sex marriage in the near future.

As
I have argued elsewhere, the margin of appreciation granted by the Court to
contracting states to maintain the heterosexual exclusivity of marriage under
Article 12 perpetuates a wide range of discrimination suffered by same-sex
couples and their families. Gay men and lesbians cannot complain under Article
14 about discrimination that results from being outside the ‘special status’ of
marriage because such exclusion is permitted under Article 12. Given that
same-sex couples are excluded from marriage in the majority of Contracting
States, and therefore cannot gain access the legal rights associated with
marriage, the Court effectively underwrites Contracting States’ ability to
maintain forms of discrimination solely on the grounds of sexual orientation.
The Court’s apology for discrimination on the grounds of sexual orientation in
respect of marriage flies in the face of the conclusions reached by the highest
courts of other jurisdictions, such as South Africa, which argue that it is
precisely because of the ‘special status’ of marriage that makes differential
treatment on the grounds of sexual orientation in relation to it one of the
most pernicious form of discrimination in contemporary societies. One day it
will become common to look back on the Court's restrictive heteronormative
interpretation of Article 12 with the same mix of incredulity and horror that
is produced when reading statements like ‘the Convention permits a High
Contracting Party to legislate to make homosexuality a punishable offence’ (W.B. v Germany, 1955).

The approach to consensus
analysis

The
Court’s approach to consensus analysis in this case exemplifies and explicates
all that is problematic about this aspect of the Court's methodology. I have
argued elsewhere that the Court’s judgments show that consensus analysis is a
device through which ‘reality’ is selectively represented in order to add
weight to its moral reasoning. The Court does not fabricate or ‘make up’
consensus but what counts as consensus is always significantly influenced by
the moral standpoints adopted by the judges sitting in each individual case.

The
question of consensus was particular prominent in this case because the Austrian
government had asserted that Contracting States should have a wide margin of
appreciation on the issue of second parent adoption by same-sex couples given
that only ten Council of Europe member States permit it and, consequently,
there is no European consensus. The Court dismissed this claim by arguing that the only relevant sample on which to base an analysis of consensus was of those ten states that permit second parent adoption by unmarried couples, six of which treat opposite-sex couples and same-sex couples in the same manner and four who adopt the same position as Austria. By adopting this narrow sample of states as
the basis for consensus analysis the majority was able to claim that ‘no
conclusions can be drawn as to the existence of a possible consensus among Council
of Europe member States’. I have some sympathy with the dissenters’ claim that
this conclusion is ‘to say the least, curious’ because ‘the States in question
are sharply divided and that there is therefore no consensus’. Furthermore, I think it understandable that the dissenters argued that
the ‘somewhat strange reasoning’ of the majority ‘is explained by the fact that
the method used may in reality not be the right one’.

This
argument over the appropriateness of the sample is understandable if one accepts that the majority selected a sample in
order to, as the dissenters argue, disregard‘a clear trend whereby the great majority of the States Parties
currently do not authorise second-parent adoption for unmarried couples in
general, still less for unmarried same-sex couples’. The dissenters call the majority’s choice of sample ‘unduly
technical – and hence reductive’ but I think a better
description of it would be ‘expedient’. This is not to say that I agree with
the dissenters’ argument that it would have been more ‘appropriate and
simpler to speak in terms of a “trend”’ – a view that ultimately
underpins their judgment that the absence of any consensus in international law
should have prevented the applicants’ from bringing a successful complaint
under the Convention. Rather, my point is
that the Court would be better to dispense with the issue of consensus
altogether in cases such as this and apply the established principle that when
it comes to issues of discrimination on the grounds of sexual orientation under
Article 14 a State’s margin of appreciation is narrow and that, therefore, the
practice of other Contracting States is of little concern. This would reduce
the uncertainty and variability that consensus analysis produces in the Court’s
approach – after all, had two of the majority joined the dissenters in their
view that a ‘trend’ approach was preferable to the ‘narrow’ sample selected,
the outcome of the judgment would have been different – and remove the need to
consider majoritarian practice when examining alleged violations of the fundamental
rights of minority groups.

A
good judgment?

The Court’s judgment must ultimately be
regarded as positive because it recognizes that laws in Austria and other Contracting
States that currently exclude same-sex couples from second parent adoption
whilst affording it to unmarried opposite-sex couples create discrimination in
violation of Convention rights. These Contracting States will be required to
amend legislation that is now in breach of the Convention. Such incremental advances
in ending discrimination against gay men and lesbian are always very welcome.

Yet the judgment, as is so often the case
with judgments issued by the Court in respect of sexual orientation complaints,
is also problematic for a number of reasons. A central concern must be the strong
restatement of the principle that the differential treatment of unmarried
same-sex couples and opposite-sex married couples will not amount to
discrimination under the Convention. This leaves Contracting States free to
maintain a situation in which only heterosexual couples have access to marriage
and, consequently, to the wide range of legal rights that flow from it.

X.
and Others v Austria therefore represents a
significant evolution of the principle of non-discrimination in respect of
sexual orientation between unmarried couples, whilst further legitimizing and
protecting the discrimination that results from the exclusion of gay men and
lesbians from marriage.

Wednesday, 20 February 2013

It is now two months ago that the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of El-Masri v. Macedonia on extraordinary rendition. This important judgment has led to a number of interesting comments and reactions. For your convenience I assemble them here.

The whole case was to an important extent built on information gathered by PACE rapporteur Dick Marty, who for years investigated the secret detention sites in Europe and the practice of rendition. See e.g. this report of his in which El-Masri is reported on as a case study.

Monday, 18 February 2013

The Council of Europe has launched a special webpage on its site which brings together all the key documents and updates about the ongoing reform process of the European Court of Human Rights. The site was presented last week during a meeting of the Committee of experts on the reform of the Court (DH-GDR). The agenda of that meeting can be found here. The site includes a short history (including all the reference documents) of the reforms so far, an overview of the different working groups (including their documents). Interesting progress reports include:

- a draft CDDH report on interim measures under Rule 39 of the Rules of Court which notes, amongst others, that the number of indications of interim measures has decreased to a considerable extent in the past two years. It also notes, interestingly since this comes from state party representatives, although the text is of course still a draft, that "Member States should be reminded that Article 34 of the Convention entails an obligation for States Parties to comply with an indication of interim measures made under Rule 39 of the Rules of Court and that non-compliance normally implies a violation of Article 34 of the Convention."

- a draft CDDH report on the advisability and modalities of a "representative application procedure" This would be " a procedure by which the Court could register and determine a small number of representative applications from a group of applications that allege the same violation against the same respondent State, such determination being applicable to the whole group" and would thus build upon the pilot judgment procedure. At Brighton, the state parties had asked for this option to be investigated. This draft report concludes, however, that "CDDH is of the view that there would be no significant added value to designing and introducing a ‘representative application procedure’ in the current circumstances." It would offer no clear advantages / distinction compared to existing procedures, according to this report, which even suggests that no further action on this specific idea be taken at the intergovernmental level.

The webpage also includes an RSS feed on upcoming meetings and reports.